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Doiakah Gray v. Hardy, 7th Circuit Appeal No. 07-3704, 3/12/2010

7th Circuit decision

Habeas – Procedural Bar

… If a state court clearly and expressly states that its judgment rests on a state procedural bar and does not reach the merits of a federal claim, then we are unable to consider that claim on collateral review. Harris v. Reed, 489 U.S. 255, 263 (1989); Pole, 570 F.3d at 937. And we have repeatedly explained that where a state court reviews the claim for plain error as the result of a state procedural bar such as the Illinois doctrine of waiver, that limited review does not constitute a decision on the merits.

Here, the Appellate Court of Illinois clearly and expressly relied on the state’s doctrine of waiver to decide Gray’s Apprendi claim. …  Accordingly, the state court’s conclusion that Gray had not established plain error was not a decision on the merits, and thus we agree with the district court that the claim is procedurally defaulted.

The bar may be overcome by showing “cause and prejudice.” Typically, as in this instance, an effort to make that showing is raised by a claim of ineffective assistance of counsel. But that claim was waived, because Gray failed to raise it on his state postconviction appeal.

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